Home | Business | CMC WINS 1ST ROUND AGAINST SRA

CMC WINS 1ST ROUND AGAINST SRA

Font size: Decrease font Enlarge font

MBABANE – CMC Swaziland (PTY) Limited has won round one against the Swaziland Revenue Authority (SRA).
This comes after a full bench of the High Court referred the matter back to SRA for it to comply with Section 42(1)-(4) of the Income Tax Order.


SRA had taken the company and its directors, Peter Guiducci and Roberto Marci to court where it was demanding a sum of E20 242 876 in respect of income tax due.
The full bench which heard and determined the matter comprised of Justices Nkululeko Hlophe, Titus Mlangeni and Mzwandile Fakudze.


“Although it was unclear why the respondents (CMC Swaziland and its directors) failed to object to the assessment served, it is difficult to hold same against them given that the notice of assessment served on them did not ex facie itself advise the respondents of their right to object within 21 days or within such extended period as the commissioner or the court may give upon good cause shown, which is contrary to Section 42(2) of the Income Tax Order,” said the court.


The court further mentioned that it was of the view that the correct thing to do was to refer the matter to SRA for it to visibly comply with Section 42(2) of the Income Tax Order which would enable it to, should the  circumstances warrant it, to hold any failure by the respondents to exercise their rights.


In its judgment the court stated that it was not in dispute that in its endeavour to recover the said sums, the applicant (SRA),claiming to be acting under Section 61 (2) filed with the Registrar of the High Court a statement certified by its commissioner as correct claiming the sum of E20 242 876.02. According to the applicant that amount was now due to be paid by the respondents and had therefore acquired all attributes of a judgment of the court. The court said it was a fact that, however, that other than the certified statement itself there was no assessment indicating the amount that was placed before it.


“There is also no proof of compliance with the peremptory provisions of Section 42 of the Income Tax Order,” noted the court.
The full bench further observed that the only assessment placed before it was of a sum of E13 469 221.50 which on its face did not comply with  Section 42 (4) of the Order , in so far as it did not advise the respondents of their right as contained in the said subsection.


“As for the sum of E20 347 876.02 the position is worse as there is no proof of the notice of assessment being given to the respondents nor that of it being served to the respondent in terms of a particular method just as there is none that the respondent was advised of his rights with regards to making an objection as he might have wished to have filed including the right they had to ask for extension of period from the commissioner himself,” said the court


It was also pointed out by the court that instead of executing the said certificate as an order of the court in line with the Income Tax Order as provided by Section 61(2), the applicant said it became alive to the fact it was not proper to do so.
 

Comments (0 posted):

Post your comment comment

Please enter the code you see in the image: